Still giddy and tickled pink from Monday’s blogpost, which I hope you enjoyed reading nearly as much as your humble blogger enjoyed writing, I bring you the matter of Garcia v. Federal Building Services, in which a WCJ’s dismissal of a lien claim for failure to appear at a lien conference was sustained by the WCAB.

The case in chief having resolved, a medical-treatment lien was filed for just under $10,000. However, on the date of a lien conference, no lien representative was present. The defense attorney tried to call around, but the lien claimant’s supposed representative advised that the assignment was rejected due to late referral. With no one there, the WCJ issued a notice of intention to dismiss the lien (as per Regulation 10562).

When no objection was filed to the NOI, the lien was dismissed, and the lien claimant filed a petition for reconsideration, arguing that an objection was submitted (but apparently not labeled with the proper case number) and that the lien representative was present but forgot to sign in and was in another lien conference at the time the case was called.

The WCAB was not impressed. Rejecting what it labeled as “the dog ate my homework” defense, the WCAB ruled that although a failure to appear may be forgiven, it doesn’t have to be and this relief is discretionary.

It also noted that the petition for reconsideration failed to explain who the actual representative was. Your humble blogger will remind his beloved readers that under California Code of Regulation section 10774.5(e)(4) the notice of representation for a non-attorney representative must be signed by BOTH the lien claimant and its representative. As per this Lexis blogpost, without such a signed notice of representation, the lien representative might be present, but the lien claimant might still have failed to appear.

The WCAB panel also admonished the lien claimant that “the lien claimant’s mistakes have taxed the WCAB’s resources, and that noncompliance with WCAB Rules or bad faith actions may result in the imposition of sanctions.”

Well, true as that may be, lien claimant tactics also tax the resources of the insurers (which is a double tax, when you think about it, because the defendants pay the bills of the Workers’ Comp system to begin with!)

The bottom line is that someone decided to wait too long before given this case a proper assignment and proper attention, and a series of events followed which wasted Board resources. The WCJ had to write a report and recommendation; the defendant had to write an Answer; the WCAB had to review the file and write an opinion. All of these hours could have been better spent in more meaningful pursuits.

Now, I know, dear readers, that looking at this single case, it’s easy to shrug your shoulder and say “what-are-ya-gonna-do?” or “well, these things happen!” This isn’t an isolated case. I’ve seen lien reps sign in and then disappear for hours at a time. I’ve seen lien reps insist on a hearing to drive up costs and then fail to appear, already focusing their gaze on negotiating the next lien with a threat of wasted attorney hours. Requiring the lien filing fee is certainly a help, but perhaps additional deterrence to such casual disregard for the Board rules are warranted.

What do you think, dear readers? Is you humble blogger being too tough on the intrepid lien claimants and their representatives? Or this a game that is well known to all of us?

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The content of this web log is for information purposes only and should not be construed as legal advice. No attorney-client relationship is formed by this site. If you would like to speak to a workers' compensation defense attorney, please contact Gregory Grinberg at 650-235-4008.